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By an amended general form of complaint dated and filed on 19th December 2011, the claimant’s claim is for, (i) A declaration that the purported dismissal of the claimant by the defendant vide dismissal letter dated 17th August 2011 is wrongful, unlawful, null and void and of no effect whatsoever. (ii) A declaration that the claimant is still validly and contractually within the employment of the defendant and therefore entitled to all his salaries, earnings, bonuses and perquisites of office from 17th August 2011 until it is properly and lawfully determined by the defendant. (iii) An order setting aside the dismissal letter dated 17th August 2011 issued by the defendant to the claimant. (iv) An order directing the defendant to immediately pay to the claimant the sum of (N2,970,500.00) Two Million Nine Hundred and Seventy Thousand, Five Hundred Naira only) being his salaries for the months of August to November 2011. (v) An order directing the defendant to immediately pay to the claimant all his salaries, earnings, bonuses and perquisites of office amounting to (N742,625.00) Seven Hundred and Forty Two Thousand, Six Hundred and Twenty Five Naira only per month from December 2011 until judgment is delivered in this suit and thereafter until he is properly and lawfully disengaged from the services of the defendant. Accompanying the complaint is an amended statement of facts, witness statement on oath, list of documents to be relied on at the trial, documents and exhibits. The defendant on its part entered a conditional appearance, statement of defence and counter-claim, defendant’s list of witnesses, witnesses’ statements on oath, list of documents to be relied upon at trial, documents and exhibits. The claimant in reaction to the statement of defence and counter claim, filed a reply to the statement of defence and defence to counter claim and additional list of documents and additional exhibits. The claimant equally filed a witness statement on oath in respect of the reply and defence to counter claim. The defendant also filed a reply to the defence to counter claim. By his amended statement of facts, the case of the claimant is that he is an Information Technology expert having obtained a Bachelor of Science Degree in Computer Science with Economics in 1997 and has worked in the Information Technology Industry since then. That he had over 13 years experience in the Information Technology Industry in Nigeria and has held positions in various companies in Nigeria before joining the defendant as a Manager, Information Technology in April 2009. The claimant averred that by a letter dated 20th March 2009, the defendant offered him employment as Manager, Information Technology for a probationary period of six months commencing 1st April 2009. That he accepted the offer and commenced work with the defendant on 1st April 2009. That following a successful probationary period, his employment was confirmed effective 30th October 2009 vide defendant’s letter dated 2nd November 2009. The claimant also pleaded that he continued to perform creditably in his position and was awarded an enhanced remuneration package and promoted to a new grade level from level 5 (i) on which he was initially employed to level 5 (k) after a successful Performance Appraisal Review for year 2009. The claimant further averred that based on his new grade level he was earning N742,625.00 per month. The claimant pleaded that on 16th August 2011 at about 5pm when he was shutting down activities for the day, he was summoned to the office of the Chief Security Officer, (CSO) to the defendant where he was informed by the CSO that the Managing Director of the defendant Mr. Opuiyo Oforiokuma had directed that he be arrested and handed over to the Police for forgery and fraud against the company and that he be specifically handcuffed and taken away from the office complex in the full glare of the staff of the defendant. That as a result, the CSO called the Mobile Policemen attached to the defendant’s offices who handed him over to the officers of the Maroko Division of the Nigeria Police who arrested him and held him for one day. That the CSO however used his discretion and did not handcuff him as he was being taken away. That at the Police Station he was informed by the officers that there was a report of fraud and forgery against him to which he made his statement and was released on bail in the evening of 17th August 2011. The claimant averred that prior to his arrest, he was not presented with any allegations or evidence against him of any kind nor was he questioned or queried on any fraud or forgery issue whatsoever pertaining to his employment with the defendant. That on 18th August 2011 a day after he was granted bail by the Police, he received a letter dated 17th August 2011 wherein the defendant purported to dismiss him “for gross misconduct in forgery of procurement documents and siphoning of the company’s fundsâ€. The claimant averred that at no time whatsoever was he confronted with these or any allegations by the defendant nor was he given an opportunity to defend himself against these criminal allegations made against him by the defendant. That the defendant unilaterally investigated him, found him guilty and dismissed him from employment for allegations based on criminality without ever challenging him and giving him an opportunity to defend himself. He further averred that he has never carried out any fraud on, nor has he stolen or siphoned any funds of the defendant. That he is entitled to his salaries and entitlements from the date of his purported dismissal until his employment is properly and lawfully determined by the defendant. The claimant averred that he was earning N742,625.00 per month and that he has not been paid for the months of August, September, October and November totaling N2,970,500.00. That he is now unable to procure another job as a result of his disreputable and unlawful dismissal for committing fraud which has not been proved against him nor was he given an opportunity to defend himself. Wherefore the claimant claims against the defendant as contained in the complaint. In its statement of defence and counter claim, the defendant admitted that the claimant was in its employment and had his employment successfully confirmed. The defendant denied the claimant’s averments that the claimant performed creditably as he claimed. That in fact there was a disciplinary hearing convened against the claimant to which he was summoned and this was as a result of his failure to exercise due care and diligence in his department. That the claimant’s appraisal score also dropped from 75.5% to 59.7%. The defendant pleaded that in consequence of the poor performance of the claimant which exposed the defendant’s business to considerable risk, a “first and final warning†letter was issued to him on 13th January 2011. The defendant also averred that contrary to the allegations of the claimant against the defendant, stated that all the defendant’s CSO said to the claimant was that some of the quotations the claimant submitted to the defendant were suspected to have been cooked up by him on which basis preliminary investigation was carried out and it was discovered that the relevant quotations, though appearing in the names of existing companies, were not actually made by those companies. That the defendant’s Chief Security Officer (CSO) further confirmed to the claimant that the management of the defendant had decided that the matter be taken to the Nigeria Police, being the statutory authority empowered to handle cases of such nature as the ones in which the claimant was involved. The defendant also denied the averments of the claimant to the effect that its CSO called the Mobile Policemen. On the contrary, that the claimant was handed over to the intelligent team of the defendant who used the defendant’s security patrol vehicle to convey the claimant to Maroko Police Station. The defendant also pleaded that it can neither admit nor deny the averments contained in paragraph 10 of the Amended Statement of Facts as the averments contained pieces of information that are within the exclusive knowledge of the claimant and the Police. The defendant also denied the averments in paragraph 11 of the amended statement of facts and states that the decision and the approach of the defendant arose from the information in possession of the defendant which was of such overwhelming and compelling nature as to the fact that the claimant has used his position to rip of the defendant. That the Police at Maroko Division of the Nigeria Police also decided based on their own investigation, that there was a basis and sufficient grounds to arrest the claimant. The defendant also averred that while the claimant was in the employment of the defendant, produced a document for the defendant entitled “Information Technology Disaster Recovery Plan†in May 2010. This was a computer printout which identifies the computer from which the said recovery plan was produced or generated and printed out from the claimant’s official laptop-computer while in the defendant’s employment. That the computer printout of a Quotation for Free Maintenance Battery dated October 19, 2010 purportedly issued from one P1 Consulting Services Limited showed that the quotation in question was also prepared, generated and printed from the claimant’s official laptop – computer while in the defendant’s employment, being the same laptop – computer from which the “Information Technology Disaster Recovery Plan†was generated and printed, and that the document did not actually come from the said P1 Consulting Services Limited. That the computer printout of the Quotation for Dell Optiplex 160 dated September 7, 2010 purportedly issued by Torquay Global Solutions Limited†showed that the quotation in question was also prepared, generated and printed from the claimant’s official laptop – computer while in the defendant’s employment, being the same laptop from which the “Information Technology Disaster Recovery Plan†was prepared, generated and printed. The defendant further averred that the company printout of the Quotation for a desktop – computer (Dell Optiplex GX 160) dated 8th September 2010 purportedly issued by “The Source Computer Limited†showed that the quotation in question was also generated and printed from the claimant’s official computer – laptop while in the defendant’s employ being the same laptop – computer from which the “Information Technology Disaster Recovery Plan†was generated and printed. The defendant also pleaded that it was also discovered during investigation that the claimant, in a bid to hide his fraudulent activities while working with the defendant, always maintained and retained all his e-mail correspondence on an external hard drive, unlike all other members of staff of the defendant. That the claimant ensured that neither the computer assigned to him by the defendant, nor the defendant’s electronic information server, contained any of his e-mail correspondence. That the said hard drive, which was recovered from the claimant by the Police has since been returned to the defendant by the Police, though a change of forgery, registered as charge No. E/31/11 has since been filed in the Magistrate Court against the claimant. The defendant equally averred that the I.T serving suppliers of the defendant by name Proficient Technologies & System Limited owned by one Abiodun Odebode submitted a set of quotation to the defendant, during the month of April 2011, for the installation of new IT framework accessories in the defendant’s new offices. As a condition to recommending Proficient Technologies for the defendant’s approval for the procurement, the claimant fraudulently requested that the quoted prices be inflated by the said Abiodun Odebode and that, upon procurement, Abiodun Odebode would be required to pay the claimant, a ‘kickback’ corresponding to 25% of the “Modulated†prices. The said Abiodun Odebode subsequently shared this information with a junior member of the defendant’s IT department by name Promise Okere, stating that the 25% sought by the claimant was too high, and asking for any assistance which could be rendered by the said Promise Okere. Also that subsequent to the arrest of the claimant by the Police, the said Promise Okere contacted and informed Abiodun Odebode via telephone of the development. That during the conversation, the said Abiodun Odebode re-confirmed the fraudulent overtures of the claimant, the failure of which the two conversers believed was responsible for the relevant IT Technologies contract given to a different party. The defendant also averred that the said IT accessories installation supply was eventually awarded to one Messrs Dunnibel Ventures Nigeria Limited via a contract signed by the latter on 30th June 2011 at the total cost of N7,233,975. That by deduction from the facts in the foregoing paragraphs, the defendant believes that the claimant secretly profited from the proceeds of the last mentioned contract by at least 25% of its value. That further evidence will be led during trial of this suit. The defendant admits that the claimant was dismissed within the terms of his contract of employment and the defendant will contend at the trial that the claimant’s dismissal was within the law. The defendant pleaded that it took the decision to dismiss the claimant based on the nefarious activities of the claimant which evidence was and still is in its possession, and based on the defendant’s conviction that it was totally injurious to its corporate, interest to keep the claimant in its employ. The defendant also pleaded that the claimant is blatantly lying that he has not committed any fraud, nor has he stolen money or siphoned any funds from the defendant. The defendant denied that the claimant is entitled to the reliefs contained in paragraph 16, 17 and 18 of the statement of facts or to any other relief at all. The defendant also counter claimed against the claimant as follows:- (i) The sum of One Million, Eight Hundred and Eight Thousand, Four Hundred and Ninety Three Naira and Seventy Five Kobo being 25% of the sum of Seven Million, Two Hundred and Thirty Three Thousand, Nine Hundred and Seventy Five Naira which the counter-claimant paid to a company known as Messrs Dunnibel Ventures Nigeria Limited in respect of a contract for the installation of IT framework accessories in the counter-claimant’s new office. (ii) An account by the defendant to the counter-claim of all the other secret profits which the defendant to the counter claim has made in respect of other transactions involving the counter-claimant and other third parties while the defendant to the counter-claimant was in the employ of the counter-claimant. (iii) General damages in the sum of Ten Million Naira. (iv) Cost of determining this action. In reply to statement of defence and in defence to counter claim, the claimant denies paragraph 5 of the statement of defence and states that he was never summoned to or attended any disciplinary hearing convened against him by the defendant. That the final warning letter was issued by the claimant’s immediate Supervisor and Chief Financial Officer (CFO) of the defendant Mr. Daniel Meyer on the instruction of the Managing Director to the claimant due to his failure, to present a proposal on a back-up domain controller to the Managing Director of the defendant. The claimant denies paragraph 6, 7, 9 i – vii, 10 and 11 of the statement of defence and responded as follows: (i) That he was never confronted with these allegations before the termination of his employment and neither was he given an opportunity to defend himself to the allegations; (ii) That in the typical fashion of the defendant, the claimant is only becoming aware of the “so called†computer print-outs allegedly proving that the quotations emanated from his official computer; (iii) Again that typically, he is hearing for the very first time of any allegation from the said Mr. Abiodun Odebode alleging that he requested for 25% kickback for the award of contract. That this was never even raised at all at the Police Station where he was questioned. (iv) The claimant denies making any secret profit from a contract awarded to Messrs Dunnibel. That this was being raised for the first time now. (v) That in any event, it was customary practice during his employment at the defendant to request for and receive all quotations and bids for jobs via email and quite naturally therefore these quotations are opened and printed from the claimant’s official system for processing. (vi) The claimant averred that he was part of a team comprised of the CFO, Head of Human Resources and Admin. Mrs. Feyi Durojaiye who negotiated and awarded the contract to Messrs Dunnibel after a competitive bid. (vii) That he circulated the submissions and updated submissions and summary of quotes sent in by all the bidders to the entire team for their consumption and decision via email of 24th May 2011. (viii) That be email of same date the CFO replied asking for his recommendation to which he replied on 26th May 2011 requesting to inspect works done by all bidders previously before making a recommendation. (ix) That Proficient Technologies & System Ltd was the only bidder that evaded the inspection process and only sent photographs which were inadequate. That as a result and considering the time constraints especially canvassed in the CFO’s email of 27th May 2011, he recommended Messrs Dunnibel in his email of 27th May 2011. (x) That he personally downgraded the scope of work of the contract which further reduced the contract sum as shown in emails dated 03 June 2011 and reply of 9th June 2011. The claimant therefore based on the foregoing urged the court to dismiss the defendant’s counter-claim and grant the reliefs sought in his complaint and statement of facts. In reply to the defence to counter-claim, the defendant re-stated its earlier averment that the nefarious activities of the claimant and the evidence against the claimant were of such a serious nature that the defendant considered it severely injurious to summarily dismiss him immediately. The defendant also in response to the claimant’s averments says that while it is true that some quotations were received via emails in some cases, in the specific cases herein, the quotations were received via emails in some cases, in the specific cases herein, the quotations were actually prepared on the claimant’s work computer and were therefore not received by email or at least not in the versions/forms received via email. That in the separate case of Messrs Dunnibel Ventures Nigeria Limited mentioned in paragraph 10 of the defendant’s statement of defence, the latter’s quotation was indeed received via email but the transaction was already fully negotiated surreptitiously with that party by the claimant including the amount of the “kickback†payable to the claimant before the quotation was submitted to the defendant. The defendant also refuted the averments in the claimant’s reply and defence to counter-claim and states that those averments are untrue as only the claimant negotiated directly with Messrs Dunnibel. That at no stage did the defendant’s CFO or HOD Human Resources have any contact with Messrs Dunnibel before the award of the contract, although they indeed reviewed the claimant’s submissions and recommendations on quotations purportedly received. That the claimant also frustrated the defendant’s CFO’s request to meet directly with Messrs Dunnibel. The defendant also denied the averments contained in the claimant’s reply and defence to counter-claim and states that all the claimant circulated were summaries prepared by himself and not the actual quotes. That the CFO had to ask the claimant specifically to present the quotes before he did at the late stage. And so the defendant’s CFO and the HOD Human Resources were never involved in the screening of the sources of the quotes. The defendant also averred in reaction that while it is true that the defendant’s CFO asked the claimant to inspect the previous installations done by all the companies who quoted for the contract, the claimant’s recommendation of Messrs Dunnibel was very strong and overwhelming and with the benefit of hindsight, the claimant was not disinterested in Messrs Dunnibel getting the contract. The defendant also responded that the claimant never downgraded the scope of work of the contract sum, rather it was the defendant’s CFO who applied pressure on the claimant, after the fact, to try and obtain a reduction of the price. That the idea of scope reduction was not at the instance of the claimant. The defendant concluded that this court has jurisdiction to entertain the counter-claim and urge the court to uphold the counter-claim and grant the reliefs sought by the defendant/counter claimant. The claimant deposed to a written statement on oath on the 9th February 2012. The contents of the said witness written deposition is on all fours with the amended statement of facts and so need no repetition. The claimant also deposed to a written deposition in respect of the reply to the statement of defence and defence to counter claim deposed to on 9th February 2012 was equally adopted by the claimant as CW1 on 7th March 2012 and was cross examined. Answering questions under cross examination by counsel to the defendants, the claimant as CW1 told the court that before his appointment was confirmed by the defendant, there was a performance appraisal. The claimant agreed that the performance appraisal was a document and is frontloaded as one of the document before this court. He told the court that his score in the performance appraisal dated June 2010 is a good grade. The claimant confirmed that he produced a document titled Information Technology Disaster Recovery Plan. He also confirmed to the court that he was warned by the defendant in writing. That before joining the defendant he had worked with Allied Computers Ltd, Resorcery Ltd, MTN Nigeria Ltd, Lagbus Asset Management Ltd, Dimension Data. That he resigned his appointment with MTN and other places he had worked. He said he was never asked to resign at MTN. He told the court that he will be surprised to be told he was forced to resign in the various places he had worked and he will demand the proof. There was no re-examination of the CW1. The claimant then closed his case. The defendant listed three witnesses. Two out of the witnesses were called by the defendant while the third witness was subpoenaed by this court on the application of the defendant. The witnesses called by the defendant whose written depositions on oath was frontloaded are Daniel Meyer and Solomon Tolofari. The third witness subpoenaed by the court is Promise Okere. The first defendant’s witness is Solomon Tolofari hereinafter referred to as DW1. The witness i.e DW1, a Retired Chief Superintendent of Police who is the Chief Security Officer of the defendant adopted his written deposition on oath sworn to on 26th February 2012. DW1 deposed that he is the Chief Security Officer of the defendant as such he knows the claimant in this case who is a former staff of the defendant company. DW1 deposed further that as part of his work schedule as the Chief Security Officer of the defendant company, all cases involving alleged criminality or criminal offences, or requiring the intervention of the company’s intelligence team, are normally reported to him. That his written statement on oath has to do with what he saw and know regarding the activities of the claimant while he was in the employment of the defendant company and about the time of his dismissal from the defendant’s employment. DW1 deposed that between the end of July and the beginning of August 2011, various quotations submitted by the claimant as IT Manager towards sundry procurements by the company were referred to him for investigation by the Chief Financial Officer CFO, Mr. Daniel Meyer, on suspicion that the said quotations were forged. That he then referred the matter to the intelligence team for investigation of which one Mr. Raji Mohammed, a member of the team, became primarily responsible for the investigation. DW1 continued that the report brought back from the investigation by Raji Mohammed, on or about 16th August 2011, indicated that four of the aforesaid quotations from two IT supply firms were forged in that the relevant firms were not known nor in existence at the addresses stated on the invoices and, in one case, also at another address obtained via telephone calls to the numbers inscribed on the quotations. That the feedback further indicated that enquiries at one of the IT supply firms revealed that the prices quoted on one of the quotations were inflated prices since Mr. Mohammed was able to obtain a lower quote for the same products just by casual visit to and enquiry from the same firm. That another of the quotations could not be investigated as there was neither address nor phone number on the invoice, thus causing astonishment as to why such an invoice should have been accepted by the claimant and submitted for processing by the defendant company. DW1 continued that he advised the CEO/Managing Director of the defendant company, as well as Mr. Daniel Meyer, of the outcome of our investigation with a recommendation that the matter be referred to the Nigeria Police for full investigation and that the claimant as IT Manager be also arrested and handed over to the Police to facilitate their thorough investigation. That this recommendation was approved by the Managing Director/CEO. That upon receipt of the approval, he immediately invited the claimant and informed him that evidence had been gathered indicating that he had committed forgeries and frauds, and that management had instructed that he be arrested and handed over to the Police for questioning and investigation. That he thereupon called on the intelligence team who escorted the claimant out of the defendant’s premises. That it was the said team that also immediately used the defendant’s security patrol vehicle to convey the claimant to Maroko Police Station. DW1 also deposed that from the tip-off to the Police, he is also aware that the Police recovered a hard drive from the claimant during their investigation which hard drive contains the claimant’s official email communication while in the defendant’s employment, that the said hard drive has since been returned to the defendant. Under cross examination by the claimant’s counsel, DW1 answered that he had served in the Police for 35 years. He agreed that he was involved in several investigations while in the Police. He also agreed that he is a very experienced investigator. He told the court in response that when a petition is written against a person while he was in the Police, the person whom a petition is written against is invited to make a statement in defence or acceptance of the petition. That outside the Police it is possible not to hear a person’s defence when an allegation is made against him. He told the court in response that orderly room trial is used to try Police personnel who commits offences or infractions. That orderly room trial is normally subjected to a review by a superior officer before any action can be taken one way or the other. That at the defendant company, people are heard before taking decision on them. That the issue against the claimant was the inquiry he was asked to do about him. That he mandated the intelligence team to handle the inquiry. That it was reported after the inquiry that the suspicion about the claimant was positive so he reported back to the company. DW1 told the court that he suggested to the Management that the claimant be referred to the Police for investigation. He also told the court that the claimant was the only one inquired after. He responded that the report that was made to him was in writing and by email. He told the court that he did not have the email it is in the defendant’s system. He said he will recognize the email if he sees it. He also said that the report that was made against the claimant was falsification of quotations. DW1 also responded that management referred it to the security department for inquiry as to whether the report was sustainable or not. He told the court that he mandated the intelligence. DW1 also said that the claimant was in charge of the Information Technology department which is also responsible for the purchase of computer sets, equipment, all computer related equipment i.e IT. Quotations that are made for purchases are usually obtained by the claimant who was in charge of that department. He also responded that there were some quotations the claimant presented which the defendant company suspected were fraudulently obtained or the quoted amount were inflated. That he did not know if the contractors who supply things whether they register with the defendant. DW1 also said the claimant quoted the amount and liaises with the suppliers to supply. Also that the suppliers are paid in cheque and not cash. That he did not know whether the cheques are paid to individuals or to the company in question. That he did not discover the cheques given to him. That he investigated quotations and not cheques. That the fraud he discovered was the inflation of amount of money discovered in the quotation. DW1 also responded that inquiries and prizing of the items led to the discovery that the items were over priced by the claimant. That he only investigated the quotations he submitted to the defendant company. He said he did not investigate the claimant as a person. That it was the police that investigated the claimant. DW1 says he is aware that the claimant was dismissed. That he received his copy by email which was addressed to all staff. That the claimant’s case was referred to him for investigation within July and August 2011. DW1 says he cannot remember now how long it took him to investigate but that it was in the months of July and August. DW1 says he knows Mr. Promise Okere. That he is his colleague in the defendant company. He agreed that Mr. Raji Mohammed advised him to interrogate Mr. Okere. That he cannot remember the exact number of the invoices that were alleged forged but there were quite a number of them which were sent to the Police for investigation. He said that he did not conduct the investigation so he does not know how many companies were visited for that purpose. He says he cannot remember the exact amount that was allegedly defrauded by the claimant. He also says he did not advise the arrest of the claimant, that he advised that the matter be referred to the Police for investigation. The claimant’s counsel referred DW1 to his written statement on oath which shows that he ordered the arrest of the claimant though he denied under cross examination. There was no re-examination of the DW1. DW2 – Mr. Promise Chimezie Okere who was subpoenaed by this court on the 8th March 2012 gave evidence for the defendant. DW2 swore by the Holy Bible to speak the truth. He told the court that he is an Information Technology Officer with the defendant. DW2 told the court that he is part of a team that manage and support the defendant company’s Information Technology Infrastructure. He agreed that he was served with a subpoena in this case. DW2 says he knows the claimant. That the claimant was his manager and boss while claimant was in the employment of the defendant. That the claimant left the defendant company on the allegation that he committed fraud against the company. DW2 told the court that to the best of his knowledge, the claimant did some of those things. DW2 says he knows Proficient Technologies Ltd. The company is our vendor, the said company does installation and sell computer systems to the defendant. He told the court that he had known the company long before the claimant joined the defendant. DW2 told the court that on the fateful day Mr. Biodun Odebode called him to say that he submitted some quotations but that the claimant was requesting for 25% of the contract sum. That when he confronted the claimant he agreed and told me he was sorry that he only wanted to assist him. DW2 also confirmed that the claimant did the same thing with another vendor which made him to cough out money from his pocket. DW2 continued that after these incidents, the claimant started monitoring him and reading his emails and began to monitor him wherever he went to, or whether he was going to senior colleagues offices. This made him to go and confide to a friend who told him that he made a mistake by confronting the claimant. DW2 told the court that when the defendant found out the fraudulent activities, the claimant was arrested and the next day he (DW2) was invited to the Police Station. On getting to the Police Station, he was told that one of the quotations had a fake address. That this was the quotation for the extension of the land cabling at their second office. PI Consulting was the company that had a fake address. He also told the court that on a particular day the claimant invited his friend one Adetola Adeleye who owns PI Consulting that he should come and do a cite survey. That the claimant instructed him to take Adetola Adeleye to the site. That when they got to the site, Adetola did the survey and then told him DW2 that he Adetola cannot do that job because he was not the person that did the initial installation. DW2 said he then went back to the office and informed the claimant of the development. That the claimant again called the said Adetola Adeleye to still send a quotation so as to use it to match that of Proficient Technology because the defendant’s policy is that he should get two or three quotations before a job can be given out. DW2 further told the court that when he was invited to the Police Station, he then called Mr. Abiodun Odebode the owner of Proficient Technology to see how he has brought him into trouble by reporting the demand of 25% “kickback†by the claimant. DW2 said he recorded his conversation with Abiodun Odebode. DW2 also said before then, he noticed that Mr. Abiodun Odebode was always quarreling with the claimant. That Mr. Odebode told him the claimant was asking for 25% of the total sum of N7.3 Million and that the claimant was asking for N1.8 Million as kick-back. Also that Biodun Odebode also informed him that he bought Rack for the defendant but did not make profit because the claimant collected about N100,000. DW2 told the court that when this incident broke out, he was asked in the office and he told them all he knew about the activities of the claimant who was his boss. He also said Mr. Abiodun Odebode forwarded an email to him stating the quotations and communication he has had with the claimant, so he had to tell the truth. DW2 also confirmed that he has heard of Dunnibel Ventures Nig. Ltd. That the company was eventually given the contract to install the land cabling because the claimant said he had issues with Biodun Odebunmi because of the 25% he requested for that which was not given that as a result the claimant gave the job to this company who the claimant confirmed paid the said percentage. DW2 says it is true that Dunnibel paid 25% and the claimant signed the completion certificate. DW2 restated he was invited to the Police Station to make statement which he did. DW2 was cross examined by the claimant’s counsel. Answering question under cross examination, DW2 says he considers himself as a good staff. He says he recalls the statement he made on 17/8/2011 to the Police. He also agreed that he made statement to the effect that he carried out instructions relating to his job. He says he doesn’t challenge such instructions so long as it relates to his job. He agreed that he is supposed to take steps to prevent, report fraud in his department. That he was never approached to come and give evidence. He said it was after the claimant was arrested that he was asked to say what he knew about the issue in question and that was when he brought those email documents and the telephone recorder out, DW2 says Mr. Abiodun Odebode was not his very good friend, that he is just a vendor to the company. He says their relationship is only professional. He says it is true we do refer to people in professional capacity as ‘guy’. He also agreed that Proficient Technology has been a vendor to the defendant before the claimant joined the defendant. He also agreed that Proficient Technology was installing for the defendant prior to the claimant joining the company. He also agreed that before the claimant joined the defendant it was the head of finance that was running the department. He said his functions at that time was to manage the Information Technology dept. That before the claimant joined it was the finance head that recommend those vendors. DW2 said the claimant is a Manager and that he reports to him. He said he did not know whether the Finance Head was still running the department. He also responded that he is not aware how the defendant company gave the job to Proficient Technology at that time before the claimant joined because he only reports to the Head of Finance who ran the department at that time. He says he did not know the qualifications of Mr. Odebode. DW2 agreed that it is possible to open an email account in many names. But he insisted that to the best of his knowledge, this email was sent by Mr. Abiodun Odebode to him. DW2 in response to the claimant’s counsel read the email sent to him by Mr. Odebode and answered that it made grammatical sense to him. He answered that Mr. Odebode called him around July/August 2011. DW2 says he is not aware that the decision to award the contract was taken on 26/5/2011. The witness also says he is not aware that the decision to award the contract was taken on 26/5/2011. That he is also not aware Proficient Technology was requested to come for inspection of prior works done by them prior to the award of the disputed contract. That by hierarchy he is a junior staff of the claimant. Also that Mr. Odebode only told him to help him talk to the claimant who was asking for 25% and to give him the job. That vendors do not reach out to him in order to get jobs from the defendant company because he is the IT officer. The witness says he did not know how and when contracts are given. That he only reports to his boss who is the claimant. He said he did not write such information in his statement to the Police about the 25% kickback. He also said he was not aware that all the companies that bidded for the disputed contract sent in updated proposals. He said he did not know anything about the process of the disputed contracts. There was no re-examination of the witness by the defendant’s counsel. The defendant also called its 3rd witness whose name is Daniel Francois Meyer, the Chief Financial Officer of the defendant company as DW3. He adopted his witness statement on oath which was deposed to on 26th January 2012. In his witness statement, DW3 deposed as follows – that he is the Chief Financial Officer (CFO) of the defendant company. That he knows the claimant who was an employee of the defendant company – as Information Technology (IT) Manager. That as part of his work schedule as the Chief Financial Officer of the defendant company, he supervised the claimant in his duties while he worked in the defendant company. That as part of his work, he also supervise the Human Resources Department which keeps all records of personnel employment in the company. DW3 deposed that he is aware that the claimant’s appointment was confirmed by a letter dated 11th January 2010 and was to take effect from 29th September 2009. That he knows that the claimant did not perform as creditably as he has claimed. That in fact, there was a disciplinary hearing, of which he was part of convened against the claimant and to which he was summoned which was sequel to his failure to exercise due care and diligence in his department. That in addition, his performance appraisal score dropped from 75.5% to 59.7%. That consequent upon this, a first and final warning letter dated the 13th January 2011 was issued to him. DW3 deposed further that in the course of his duties, he suspected that some of the quotations which the claimant submitted to the defendant as having emanated from third party suppliers or potential suppliers were cooked up by him as a result of which he investigated the matter further. That in the course of his investigations, he noticed and confirmed that the quotations which the claimant presented to the defendant as having been issued by some firms for the supply of diverse items to the defendant were actually quotations and proforma invoices which were prepared, modified or adopted on the claimant’s official laptop – computer that was provided to him by the defendant. That he was able to confirm this position, as set out in the following particulars as follows:- PARTICULARS (i) That he has seen the defendant’s Information Technology Disaster Recovery Plan dated May 2010 as well as a computer printout which identifies the computer from which the said Recovery Plan was produced or generated and he had realized from the computer printout that the document entitled “Information Technology Disaster Recovery Plan†dated May 2010 was generated and printed out from the claimant’s official laptop computer while he was in the employment of the defendant. (ii) That he has seen the quotation for Free Maintenance Battery dated October19, 2010 purportedly issued from PI Consulting Services Limited and he has seen a computer printout which identifies the computer on which the document was prepared and generated to be in the same laptop computer (i.e the claimant’s official laptop while he was in the employment of the defendant) from which the document entitled Information Technology Disaster Recovery Plan dated May 10 was generated and printed out and not actually from PI Consulting Services Limited. (iii) That he has seen the quotation for Dell Optiplex 160 dated September 7, 2010 purportedly issued by “Torquay Global Solutions Limited†and he has seen a computer printout which identifies the computer on which the document was prepared and generated to be the same laptop – computer (the claimant’s official laptop while he was in the employ of the defendant) from which the document entitled Information Technology Disaster Recovery Plan dated May 2010 was generated and printed out and not actually from Torquay Global Solutions Limited. (iv) That he has seen the quotation for a desktop – computer (DELL OPTIPLEX GX 160) dated 8th September 2010 purportedly issued by “The Source Computer Limited†and he has seen a computer printout which shows and identifies the computer from which the document was prepared and generated to be the same official laptop computer of the claimant while he was in the employ of the defendant from which the document entitled “Information Technology Disaster Recovery Plan†dated May 2010 was generated and printed out. (v) That he knows that the said official laptop – computer of the claimant was during the period in question used regularly to store and process information relating to the duties and functions of the claimant while he was in the employ of the defendant such as the document entitled “Information Technology Disaster Recovery Planâ€. (vi) That he also came to know, during his investigations that the claimant in a bid to hide his fraudulent/dishonest activities while working with the defendant, always maintained and retained all his email correspondence on an external hard drive and culture all the other members of staff of the defendant, the claimant ensured that neither the computer assigned to him by the defendant, nor the defendant’s electronic information server, contained any of his email correspondence. That the said hard drive was recovered from the claimant by the Police and has since been released to the defendant although he is aware of the fact that a charge of forgery (Charge No. E/31/11 has since been filed against the claimant in the Magistrate Court. DW3 continued, that he knows that after sundry quotations obtained by the claimant and based on his recommendation, the defendant eventually awarded a contract for the supply and installation of IT framework accessories to its new offices, to one Messrs Dunnibel Ventures Nigeria Limited via a contract signed by the latter on 30th June 2011 at the cost of N7,233.975. That he is aware that based on subsequent reports received by the defendant, the defendant has deduced that the claimant secretly profited from the amounts paid to Messrs Dunnibel in an amount corresponding to approximately 25% of the aforesaid value of the contract. That the claimant’s dismissal from the defendant’s employment was done within the terms of his contract of employment with the defendant and within the confines of the law and urged the court to dismiss the claimant’s claims. DW3 was cross examined by the claimant’s counsel. Responding to the cross examination, DW3 said he is the Chief Financial Officer (CFO) of the defendant. That as a Chief Financial Officer, he is responsible for Finance, Human Resources, Information Technology, Procurement, Business Processes and for Internal Audit on the day to day running of the department. He responded that a department requesting payment will make a request, which must be approved by the head of the department before he DW3 gives the final approval before payment is made. He said he joined the defendant in June 2009. At that time the claimant was already working in the defendant company. That vendors are registered with the defendant before they procure anything. That there is usually a check on the addresses of the companies with the Corporate Affairs Commission. That the company policy is to pay vendors by cheque or through electronic transfers but for amount less than N50,000 cash can be paid. That the cheques are issued in the names of the invoice presented. DW3 said the document on page 41 is the template of the document that was forged by the claimant. DW3 further said he cannot confirm any amount orally based on this document. He also said he cannot confirm the specific amount on these invoices how much the company was cheated. He agreed that he made a statement to the Police. He said he told the Police that the documents were fraudulent. He denied that he traced any payment to the claimant but that Mr. Okere told them that the claimant benefited from the contract and he demanded for 25% kickback before he can assist Dunnibel to get a contract with the defendant. He says he was not there. He also said he was on the panel that awarded the contract. That he is aware that the claimant was asked to inspect previous works done by all the parties that bidded for that contract. He said the claimant reported that Proficient Technology did not show up at the inspection. He said the Head of Human Resources is Mrs. Feyi Durojaiye was also on the panel. That the claimant was also part of the committee. That based on information provided by the claimant, the contract was awarded in June 2011. That he became aware of the claimant’s irregularities since June 2011. He said he still used the claimant because the defendant did not have enough evidence at that time to nail him. Also that as at August 2011 when the claimant was handed over to the Police, the defendant had enough evidence. That the hard evidence the defendant had against the claimant are those on pages 42 – 48 in the frontloaded documents before the court. DW3 said he submitted these documents to the Chief Security Officer of the defendant. He said he obtained these documents from the emails the claimant sent to him. He said the documents submitted to the defendant by the claimant purported to be sent from outside were actually generated by the claimant from his computer to the defendant and so when it was compared it was discovered. It was also discovered from his computer password. DW3 also responded that the document on page 70 is a request by the claimant for quotation by email. He also agreed that the document on the reply list of documents by the claimant was from him. That he did not challenge the claimant with the hard evidence. Also that he received the email on the last item of the claimant list of documents. He also answered that the document appears consistent with the signature of the Head of Human Resources. That Mrs. Feyi Durojaiye is still head of Human Resources in the defendant company. DW3 says the period of termination notice varies. That at the level of the claimant it is normally 30 days notice to terminate his contract. That it was not unusual to receive invoices and quotations from the claimant by email. DW3 agreed that those emails were sent from his computer. There was no re-examination of the witness by the defendant’s counsel. Parties were thereafter ordered to file their final written addresses in accordance with order 19 rule 13 of the National Industrial Court Rules 2007. The defendant/counter-claimant’s final written address is dated 5th November 2012 but filed on the 6th November 2012. The defendant/counter-claimant raised two issues for determination as follows: (1) Whether on the facts of this case and in the light of the applicable law, the claimant has made out a case for this court to grant him the reliefs set out in the Amended Statement of Facts? (2) Whether the defendant/counter-claimant is entitled to the relief sought in the counter-claim? In arguing this issue, Learned Counsel for the defendant chose to begin by reproducing the reliefs contained in the claimant’s amended statement of facts and decided to examine each of the reliefs one after the other in the argument of the issues raised. In examining the first relief of the claimant which is Relief 1 A declaration that the purported dismissal of the claimant by the defendant vide dismissal letter dated 17th August 2011 is wrongful, unlawful, null, void and of no effect whatsoever. Learned Counsel to the defendant began his submission by stating that in examining the question of whether this relief is available to the claimant, in this wise, learned counsel submitted that the contract between the claimant and the defendant is that of master and servant. That in such a relationship, the party who alleges that the contract has been unlawfully terminated just as the claimant in this case bears the onus of establishing the terms of the contract. Citing Anaja v. UBA Plc [2011] 15 NWLR (pt 1270) p. 377 where it was held that: “It was the appellant that alleged wrongful dismissal and the onus of proving this assertion, is clearly on his shoulders. He has to show and satisfy the court, the terms of his employment and the way and manner those terms were breached by the respondent. See Katto v. CBN [1999] 6 NWLR (pt. 607) 390 and Bamigboye v. Unilorin [1999] 6 SCNJ 295 at 323â€. To counsel, having thus shown that the claimant bears the onus of proving the fact of his alleged wrongful dismissal and that he has to establish this by putting forward his terms of employment. That in the claimant’s appointment letter dated 20th March 2009 which contains his terms of employment with the defendant under the sub-title “Misconductâ€, the following terms are clearly set outâ€. “Should you at anytime be guilty of grave misconduct, refuse to comply with orders/instructions, disclose confidential information, be convicted of a criminal offence conduct yourself in such a manner as to bring the company into disrepute, or be incapable of performing your duties to the satisfaction of the company, the company will be entitled to exercise its power of summary dismissalâ€. The defendant’s counsel then submitted that in this regard, while the letter of employment empowers the defendant to dismiss the claimant from its service summarily, the letter does not lay down any procedure that the defendant should follow in doing this. That therefore, the claimant cannot correctly contend that the defendant has breached the terms of contract which do not exist, referring the court to Anaja v. UBA Plc (Supra) where the Court of Appeal held at p. 395 as follows:- “For all intent and purposes therefore, there are no provisions made for summary dismissal, in the contractual documents that govern the relationship between the appellant and the respondent. Since the terms of the appellant’s employment did not make such provision, let alone the procedure for it, the appellant cannot be heard to complain about the breach of his contractual agreement by the respondent. To that extent, he was not able to discharge the burden on him, to satisfy the court that his summary dismissal was wrongfulâ€. That in any case, the defendant has been able to establish by evidence as already analyzed that the claimant generated various quotations from his official laptop for the procurement or supply of various goods to the defendant and made it as if the quotations emanated from third parties and indeed that he collected a bribe from a contractor of the company namely: Messrs Dunnibel Ventures Nigeria Limited. To counsel these acts come within the terms of gross or grave misconduct as known in the law relating to master and servant. That these acts also entitle the employer to dismiss an employee summarily as the defendant had done in this case, citing Uzondu v. UBN Plc [2009] 5 NWLR (pt. 1133) p. 1 at 14 where it was held as follows: “where an employee omits to do something or commits an act which is injurious with the faithful discharge of his duties, it is justifiable for the employer to dismiss himâ€. Also that in Azenabor v. Bayero University [2009] 17 NWLR (pt. 1169) p. 96 at 115 it was held: “In any case, the law is settled that in a master and servant relationship, there is a general power reposed in the employer to dismiss an employee for misconduct of any kind. What constitutes misconduct is not clearly spelt out, but “gross†misconduct has been defined as conduct of a grave and weighty character as to undermine the confidence that should exist between employee and employer and misconduct in this case is what the employer makes it out to be. It would be series of disobedient actions of insubordination, absenteeism, embezzlement or some other conduct that would be considered detrimental to the corporate existence of an institution.†To counsel, the defendant did what is expected of it before dismissing the claimant from its employment and the claimant was given a fair hearing. Continuing, counsel submitted that the defendant could not have acted otherwise due to the fact that the defendant had satisfied itself that the claimant has committed the acts which are acts which the Police are statutorily clothed with the power to investigate and prosecute and the defendant referred the matter to the Police and handed the claimant to the Police. That the claimant in his evidence said he was taken to the Maroko Police Station where he made written statement on the 17th August 2011 and he was served with a dismissal letter on 18th August 2011. That this can only mean that the defendant was not satisfied with the explanation which the claimant offered in his statement regarding the events surrounding his dismissal. To counsel, the major plank of the claimant’s case appears to be that he was never accorded a fair hearing before his dismissal, that this is far from the truth, as on the available evidence, the claimant was accorded a fair hearing. That assuming for the purpose of arguments, that he was not accorded a fair hearing, it is trite law that the question of fair hearing does not arise in contract of employment not governed or regulated by statute. Learned Counsel also referred the court to Alhaji Yusuf v. Union Bank of Nigeria Ltd [1996] 6 NWLR (pt. 457) p. 632 at 644 where it was held: “… it is trite law that whether the dismissal is lawful or unlawful in a purely master servant relationship, it has brought the relationship to an end. We cannot pretend that the relationship continued because it has brought the relationship to an end.†Learned Counsel equally referred to Jirgbagh v. UBN Plc [2001] 2 NWLR (pt. 696) 11 at 23 where the Court of Appeal restated the above position of the law and quoted the case of Denmark Productions Ltd v. Boscobel Production Ltd [1969] 1 Q.B. 699 with approval thus: “An employee dismissed in breach of his contract of employment cannot choose to treat the contract as subsisting and sue for an account of profits which he would have earned to the end of the contractual period, he must sue for damages for the wrongful dismissal and must of course, mitigate those damages so far as he reasonably can.†Counsel to the defendant also referred to the case of Co-operative and Commerce Bank (Nig) Ltd v. Okonkwo [2001] 15 NWLR (pt. 735) 114 at page 137 where it was held: “What has to be said here is simply that it is only in employments under statute or which have statutory flavor that a dismissal can be said to be “unlawful, ultra vires, null and void and of no effect†in that the purported dismissal was not done by the correct officer designated to do the termination or dismissal, or that the correct procedure was not followed as issuing a dismissal letter without first issuing a query or conducting an enquiry as stipulated in the enabling statute. See the cases of Morohunfolu v. Kwara State College of Technology [1990] 4 NWLR (pt. 145) 506 and Olaniyan v. University of Lagos [1985] 2 NWLR (pt. 9) p. 599. In all other cases which have no statutory flavor all that the trial Judge has to say is that the dismissal was wrongful in that the prescribe notice was not given. In such a case, there would be no question of the dismissal being ultra vires, null and void, as there would be no question of reinstatement. The only available remedy to the plaintiff would be damages. The Learned trial Judge was therefore not right in talking of both unlawful and wrongful dismissal in respect of the same transaction.†Learned Counsel further submitted that the rationale for this has also been explained by the Court of Appeal in Ezenkwere v. Goldern Guinea Brew Ltd [2000] 8 NWLR (pt. 670) 648 at 658 thus: “With respect to learned counsel, I think there has been some basic misconception on his part here. The dismissal of an employee is not necessarily illegal or unconstitutional because it is contrary to the terms of the document governing the relationship between his employer and him. If that document is only the product of a mutual agreement between the parties, not imposed by statutory law, then non-compliance will not necessarily result in an illegal act. It may result in a wrongful act for which the employer may in law be held liable in damages to the employee. A wrongful act is not necessarily an illegal or unconstitutional one. An act is wrongful if it involves, the infringement of some right. See Mogul the Steamship Co. Ltd v. McGregor, Gow & Co and Ors [1889] 598, at 612, adopted by Bello JSC (as he then was) in Aliu Bellow & Ors v. A.G Oyo [1986] 5 NWLR (pt. 45) 828 at 853â€. The defendant’s counsel further referred the court to the case of Eze v. Spring Bank Plc [2011] 18 NWLR (pt. 1278) where the Supreme Court held: “If I may recap what the appellant is seen to be contending upon his complaints as clearly distilled from the issues raised for determination is tht the procedure for dismissing him is faulty to the degree of being null and void for breaching a fundamental procedure by not observing the basis principle of fair hearing, that is to say, by denying him fair hearing and non-compliance with the rules of natural justice. This matter is not as simple as the appellant is making it to look like. He has, however ignored the fact that it is settled that the law does not require an employer to follow any particular procedure in summarily dismissing an employee where the charge against the employee is founded on acts of gross misconduct bordering on crime and so also that by the nature of his contract of employment, a mere contract of master and servant, his employment is not one protected under statute and so it is not clothed with statutory flavor. Meaning on general principles that even where his dismissal is otherwise flawed for want of fair hearing the appellant cannot at common law be forced down his unwilling employer particularly so in the fact of the instant breach of confidence alleged against him.†Learned counsel also argued that even if it is proved that the claimant has been wrongfully dismissed by the defendant which is not conceded, all that the claimant will be entitled to is the amount he would have earned during the period of notice. That it is trite law that the measure of damages recoverable for wrongful dismissal or termination of appointment is only limited to what the person affected would have earned over the period of notice. Counsel also contended that based on the undisputed evidence in this case, the period of notice to which the claimant would have been entitled to is one month or thirty days. To counsel, neither will the fact that a wrong or bad or an untenable reason has been given by the employer for the dismissal entitles the employee to more than this remedy citing Katto v. CBN [1999] 6 NWLR (pt. 607) 390 where it was held that: “The law is now clear beyond peradventure, that in a purely master and servant relationship devoid of any statutory flavor and in which the relationship is purely contractual, termination of an employment by the employer cannot be wrongful unless it is in breach of contract. Notwithstanding that the employer gave a totally untenable reason for the termination, once he had complied with the terms of the contract, there would be no breach of the contract of employment. ….†Counsel submitted that the manner in which the contract was brought to an end or that the employee as a result of the dismissal became anxious or disturbed as a result is not a relevant factor in the determination of the damages to be awarded in a master servant relationship such as this citing N.A.B Ltd v. Shuaibu (incomplete citation) and Shena Security Co. Ltd v. Afropak (Nig.) Ltd [2008] 18 NWLR (pt. 1118) p. 77 at 108 where the Supreme Court held as follows: “The damages recoverable usually in the cases of wrongful dismissal or termination are losses reasonably foreseeable by the parties acts in breach of the terms of the contract. They do not include or take account of speculative or sentimental values. The court in awarding damages will certainly not include compensation for injured feelings or the loss that may have been sustained from the fact that the dismissal of the employee makes it more difficult for him to obtain fresh appointment.†Concluding on this issue, defendant’s counsel urged the court to dismiss the claimant’s case because: (i) The claimant has not established that the dismissal in question is contrary to his contract of employment with the defendant. (ii) Assuming without conceding that the dismissal in question is unlawful, in contract for service involving a master and its servant such as this declarations that the dismissal was illegal, unconstitutional or a nullity, or invalid will not be made by a Court or Tribunal properly instructed on the applicable law; and (iii) Assuming further without conceding that the dismissal is unlawful, the only remedy available to the claimant in his salary which he is entitled for the proper termination during the period of noticed to which he is entitled for the proper termination of the contract which in this case is one month or thirty days. On issue two, which is whether the defendant’s counter claim ought to succeed, the defendant’s counsel submitted that on the evidence and the law and since the defendant has been able to establish its counter-claim having shown that the claimant secretly profited to the tune of N1,808,493.75 in respect of a contract which was awarded by the defendant through, the agency of the claimant to Messrs Dunnibel Ventures Nigeria Limited, the defendant should be awarded the relief contained in the said counter-claim. That the evidence of Mr. Promise Okere which he gave during the proceedings of the 9th day of May, 2012 confirms this. To counsel, the position of the law is that the principal i.e. the defendant who is also the counter claimant in this case is entitled to claim from the bribed agent the amount of the bribe payment. Counsel submitted that the defendant counter-claimant is therefore entitled to recover the sum of N1,808,493.75 being the bribe money which the claimant received from Messrs Dunnibel Ventures Nigeria Limited which sum in turn constitutes 25% of the total sum of N7,233,975.00 which the defendant counter claimant paid to a company known as Messrs Dunnibel Ventures Nigeria Limited in respect of a contract for the installation of IT framework accessories in the counter claimant’s new office. The defendant’s counsel finally submitted that in the light of the foregoing urged this court to enter judgment for the defendant in terms of its counter claim. The claimant’s counsel in his written address dated and filed on the 12th November 2012 raised four issues for the determination of this court viz: (i) Whether in view of the criminal allegations of fraud and forgery made against the claimant, the claimant was lawfully and validly dismissed by the defendant. (ii) Whether on the pleadings, as well as the evidence, the defendant proved the allegations of fraud and forgery against the claimant beyond reasonable doubt. (iii) Whether the claimant is entitled to the grant of the reliefs sought as endorsed on the General Form of Complaint. (iv) Whether the defendant is entitled to the grant of its counter claim dated 26th February 2012. Arguing on issue one, the claimant’s counsel submitted that it is a common place and well settled principle of law that where an employer wishes to dismiss an employee for gross misconduct or allegations of crime, the principles of natural justice must apply such that the employee must first be confronted with the allegations, and given a fair and dispassionate hearing before he/she is dismissed, citing Yusuf v. Union Bank of Nigeria Ltd [1996] 6 NWLR (pt.457) 632 at 644 where the Supreme Court held as follows: “On the issue of fair hearing which the appellant belated introduced, it is my considered view that before an employer can dispense with the services of his employee under the common law, all he needs to do is a afford the employee an opportunity of being heard before exercising his power of summary dismissal, even where the allegation for which the employee is being dismissed involves accusation of crime… To satisfy the rule of natural justice and fair hearing a person likely to be affected directly by disciplinary proceedings must be given and adequate notice of the accusation against him to enable him make representation in his own defence.†That this principle was earlier upheld and properly explained in Kotoye v. CBN [1989] 1 NWLR pt. 98 at 448. To counsel, the letter of dismissal issued by the defendant to the claimant is dated 17th August 2011 and a body of the said letter reads as follows:- “Following an investigation unto various procurements made by you as the Manager IT Department, we have uncovered evidence that indicates that you have committed a series of frauds in the company. You are hereby summarily dismissed, with effect from today 17th August 2011, from the employment of Lekki Concession Company Limited (LCC), for gross misconduct in forgery of procurement documents and siphoning of the company’s funds.†Learned counsel submitted that the claimant has maintained in paragraphs 11, 12, 13 and 14 of his Amended Statement of Facts dated 19th December 2011 and the corresponding paragraphs 11, 12, 13 and 14 of his witness statement on oath dated 9th February 2012 that he was never challenged with the allegations or given a chance to be heard. That this specific averment by the claimant was not denied or responded to by the defendant in its defence and neither was the claimant cross examined on this point or controverted in anyway with evidence during the trial. That as a matter of fact, there is no averment whatsoever to the effect that the claimant was shown the allegations and evidence against him, that he was given an opportunity to respond and that a disciplinary hearing was held before he was dismissed. Also that it is the law that mere denial, evasive response or general traverse without specific responses and supporting evidence amounts to no denial and is tantamount to an admission, referring the court to Okwaranyia v. Eke [1996] 3 NWLR (pt. 436) 335 at 361 paras B – H. Learned Counsel further argued that more importantly, the defendant’s witness admitted under cross examination that the claimant was never challenged with the allegations and therefore was not given an opportunity to defend himself. That DW3 was asked under cross examination if the claimant was ever challenged with the evidence before his dismissal and he responded in the negative. That DW1 who claims to have worked in the Police for 35 years even went to ridiculous length to try to justify the failure to give the claimant an opportunity to be heard. The claimant’s counsel therefore submitted that, on the unchallenged and uncontradicted evidence of the claimant that he was never challenged with the evidence or given an opportunity to defend himself before he was summarily dismissed for forgery and siphoning company funds. That this is a breach of the time honoured principles of natural justice and equity therefore renders his dismissal null and void. Also that the Supreme Court affirmed this position in the case of S.P.D.C Ltd v. Olanrewaju [2008] 18 NWLR (pt. 1118) 1 at 22 where Tabai JSC held as follows: “The appellant maintains that the allegation was proved against the respondent to justify his dismissal. In the passage of the learned trial Judge which I have reproduced above, he took the view that in the investigations conducted by the appellant leading to the respondent’s dismissal, the rules of natural justice were breached. The Court of Appeal upheld the findings. If these concurrent findings and conclusions of the two courts below are supported by the evidence on the record then the dismissal based thereon is null and void and would be held to be rightly so declared ….. In these circumstances, I fully endorse the conclusion of the learned trial Judge that the rules of natural justice were breached in the whole process and the respondent’s dismissal based thereon cannot stand. I hold that the dismissal was wrongful, null and void and was rightly so declared by the two courts below.†The claimant’s counsel therefore urged the court to answer issue one in favour of the claimant. Responding to the point made by the defendant that there is no procedure for summary dismissal, stated in the terms of employment of the claimant, the claimant’s counsel submitted that the principles of natural justice and equity are read into every contract of employment and more specifically in cases dealing with allegations of misconduct and or allegations of crime against an employee. The claimant’s counsel also submitted that the defendant did not cite any authority to the effect that fair hearing has no place in contract on employment not governed or regulated by statute. On issue two, Learned Counsel to the claimant submitted that it is an indisputable point of law that an employer under the common law can terminate an employee’s employment for any reason or no reason at all. However, that where the employer of its free volition gives a reason for the dismissal/termination, the employer must be able to prove the allegations against the employee citing Olatubosun v. NISER [1988] 1 N.S.C.C Vol. 1 p. 1045 – 1046 as follows: “An employer is not bound to give reasons for terminating the appointment of his employee, but when he gives reason, the onus lies on his to establish the cause or reason at the trial to the satisfaction of the court. The respondent having therefore given reasons for terminating the employment of the appellant was therefore bound to prove to the satisfaction of the court that the rules of fair hearing was observed without prejudice to the appellant.†That in the instant case, the defendant clearly stated the reason for the dismissal of the claimant in the dismissal letter dated 17th August 2011 i.e for forgery and siphoning of company funds. To counsel, the question that arises in whether the defendant has proved the allegations of forgery and siphoning of company funds against the claimant which also according to counsel is in the negative. To counsel even though the defendant has claimed in paragraphs 9 and 10 of the defence that the claimant forged certain invoices from his computer and illicitly obtained 25% kick back from a contract given to a firm called Dunnibel Ventures Nigeria Ltd, yet there was no concrete evidence to establish that. That DW1 who gave evidence for the defendant said he did not take part in the investigation, neither did he visit the offices of the companies whose documents were allegedly forged, that he was only informed by the intelligence so his evidence amounts to hear say pure and simple. To counsel, without tendering the report of the investigation, the defendant has failed to present any evidence to support the evidence of DW1 before the court. Also that the defendant claims that the various invoices submitted through the claimant were forged and did not emanate from the companies in question. Yet none of the officials of these companies has testified that the invoices do not belong to them, and that this again is hearsay. Counsel referred to Section 167 (d) of the evidence Act 2011 and the case of State v. Okpala [2012] 3 NWLR (pt. 1287) 388 at 407 – 408. The claimant’s counsel further submitted that the testimony of DW1 be discountenanced in its totality because his entire evidence is marred by material contradictions which this court cannot overlook. Learned Counsel referred the court to Adepoju Ayanwale & Ors v. Babalola Atanda & Anor [1988] 1 NWLR (pt. 68) at 22, Ezemba v. Ibeneme [2000] 10 NWLR (pt. 674) at 74. As regards the evidence of DW2, the claimant’s counsel submitted that the said witness is a tainted witness and a witness of falsehood. That the reason for the defendant urging this court to subpoena DW2 is aimed at hiding the fact that DW2 is a witness with a hidden agenda. To counsel, this lies manifested when DW2 told the court that he was never at anytime approached to come and give evidence and he refused. That DW2 was mentioned in the investigation report produced by Mr. Raji Mohammed and was specifically recommended for questioning on certain invoices. That this explains why the defendant resisted attempt to tender the said report. But that it is trite law that any document contained in the court’s file but not tendered in evidence and marked as exhibit can still be looked at by the court in the interest of justice, referring to Hope Uzodinma v. Senator Osita B. Izunaso [2011] 17 NWLR (pt. 1275) 30 at 75. Learned counsel therefore urged the court to look at the said report which is in the court’s file as an attachment to the motion on notice dated 20th April, 2012. That the document will show that DW1 and DW2 are co-conspirators with the sole aim of misleading this court by telling blatant lies and it will also show that DW2 was a major part of the investigation and was somehow told to lie against the claimant in conjunction with other witnesses. Secondly that since DW2 is still in the employment of the defendant certainly he who pays the piper dictates the tune and so the whole subpoena saga is an attempt to hoodwink the court and distract it from the defendant’s true intention. Thirdly that it is very clear that DW2 is apparently a very close friend of the faceless Mr. Odebode who was not called to testify. That DW2 admitted that he has known Mr. Odebode long before the claimant joined the defendant company. That DW2 also knows the email address of the said Mr. Odebode and they have exchanged many phone calls. That this has made the DW2 a tainted witness and so urge the court to treat his evidence with caution. Counsel cited Mbenu & Anor v. The State [1988] 2 NSCC Vol. 19 pt. 11 and upheld in 2010 in the case of Olaiya v. State [2010] 3 NWLR (pt. 1181) 437 – 438. The claimant’s counsel equally submitted that irrespective of all of the above, that the evidence of DW2 on its merit is nothing but a total fabrication, hearsay, speculation and outright lies. That the entire testimony of this witness is premised on hearsay evidence or rumors, citing F.R.N v. Usman [2012] 8 NWLR (pt.1301) 160. The claimant’s counsel equally submitted that the two emails could clearly not have emanated from the same person and the author who could have cleared the air was not called in evidence and so the contents of the email even if accepted as genuine would still amount to inadmissible hearsay evidence citing State v. Nnolim [1994] 5 NWLR (pt. 345) 394 at 406. As regards the evidence of DW3, the claimant’s counsel submitted that DW3 as the Chief Financial Officer of the defendant could not tell the court how much, if any, the defendant was defrauded of by the claimant. That DW3 also admitted that no kobo was traced to the claimant yet the claimant was dismissed for siphoning company funds. That the evidence of DW3 was also hearsay evidence of what Mr. Odebode told Mr. Okere (i.e DW2). Counsel also submitted that the entire documents in pages 42 – 48 of the documents are worthless pieces of paper worthy only to be thrown away. That their pieces of paper were clearly doctored by the defendant as the claimant was not present when the so called comparison was done by DW3 and his faceless gang. The counsel, DW3 was the accuser, the investigator and Judge of the claimant and urged the court to so hold and declare the whole procedure as illegal. On issue three, the claimant’s counsel contended that based on judicial authorities this court can award the claimant all his salaries and entitlements till the date of Judgment because his summary dismissal for gross misconduct is null and void and of no effect. That this is quite different from wrongful termination or dismissal without reason. Counsel cited the case of Nigerian Produce Marketing Board v. Adewunmi [1972] N.S.C.C 662 where it was held that: “In a claim for wrongful dismissal, the measure of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contractâ€. Counsel also cited Shell Petroleum Development Corporation v. Olarenwaju (Supra). That the effect of an unlawful dismissal as has been canvassed in issue one above is that such a dismissal will be set aside and the party will be entitled to all his benefits as he would have been entitled to had the contract continued and the claimant’s counsel urged this court to so hold. On issue four, the claimant’s counsel submitted that the defendant’s counter claim is spurious, speculative and based purely on hearsay and deductions which are not admissible and cannot be acted upon by ac court of law. Counsel reproduced the reliefs sought in the counter-claim and argued that the factual basis of the counter-claim is built upon paragraph 10 of the Statement of Defence adopted in support of the counter-claim. To counsel, the counter claim is based on deductions which a court of law cannot be expected to embark upon because courts of law do not speculate. Referring to Ikenta Best (Nig.) Ltd v. A.G Rivers State [2008] 6 NWLR (pt. 1084) at 653. That both the parties and the court are not to speculate on anything and yet the entire counter claim and the defence is based on speculation. That the defendant failed to prove to the court that the claimant demanded and or collected the alleged sum of N1,808,493.75 from the said Messrs Dunnibel Ventures Nigeria Limited. Also that the defendant did not lead any evidence to prove that the claimant had been making any secret profits from the defendant. That there is also no evidence before the court that the defendant suffered any damage whatsoever. That all the evidence before this court is based on hearsay evidence and speculation. The claimant’s counsel therefore submits that the entire counter claim is spurious, speculative and out rightly incredulous and it is trite that the court of law will not engage itself in speculations. In reply on points of law, the defendant/counter claimant counsel submitted that contrary to the argument of the claimant, the defendant had cited the case of Alhaji Yusuf v. Union Bank Ltd [1996] 6 NWLR (pt. 457) 632 to support its argument that when it comes to the issue of breach of contract of service, the issue of whether the employee was given a fair hearing is irrelevant to that of the issue whether the contract has come to an end. The defendant also cited Eze v. Spring Bank Plc [2011] 18 NWLR (pt. 1278), Olanrewaju Afribank (Nig) Plc [2001] 13 NWLR pg. 691 at 705. The defendant’s counsel also responded that the claimant’s reliance on earlier Supreme Court’s decision in SPDC Ltd v. Olanrewaju (Supra) a 2008 Supreme Court’s decision with Ezen v. Spring Bank Plc on 2011 decision is misconceived. That the position of the law is that where there are two conflicting judgments of the Supreme Court, the lower court is bound to apply the latter of the two decisions. That this was the position of the Supreme Court in Osakire v. Federal College of Education, Asaba [2010] 10 NWLR (pt. 1201) page 1 at 34. The defendant also cited Spring Bank Plc v. Babatunde [2012] 5 NWLR (pt. 1292) p. 83. As to whether the evidence of the defendant’s witnesses amounts to hearsay, the defendant’s counsel responded that the evidence of the witnesses on oath is limited to what they did, saw or heard which in law amounts to direct evidence. That Mr. Solomon Tolofari sworn to having been present when the claimant was taken to Maroko Police Station while the evidence of Promise Okere was at to what transpired between him and Mr. Odebode to the effect that the latter told him of the pressure being piled on him to pay 25% of the contract sum before the contract in question could be awarded to his company. As for DW3, that his evidence centred essentially around the discovery he made by comparing the various documents which he received in the course of his duties from the claimant. That the evidence of DW3 is that he having examined the various quotations in question along with another document which was produced by the claimant, he found that they were all shown to have originated from the claimant’s official laptop computer when he was in the employ of the company. To counsel the defendant has complied with the current state of the law as to the manner and conditions for admission of computer generated evidence as stipulated in Section 84 of the Evidence Act 2011. The defendant reiterated its position that the claim of the claimant be dismissed while its counter-claim should be allowed. After a careful consideration of the argument of the parties, and the process filed as well as all the documents frontloaded, two issues call for the determination of this court. These are: (1) Whether the claimant is entitled to the grant of the reliefs sought in this case. (2) Whether the defendant is entitled to the reliefs sought in the counter claim. As regards the first issue, the claimant claims before this court is that his dismissal was wrongful, null and void as he was not afforded fair hearing before he was dismissed. The defendant on the other hand insists that its action was in line with the terms of the employment of the claimant and the applicable law regulating their relationship. The case of the defendant is that the claimant has breached his terms of employment by committing fraud and forgery which resultant effect is to the dismissal of the claimant. The defendant also argues that claimant’s letter of employment did not lay down any procedure that the defendant should follow in dismissing the claimant for misconduct. The law in this regard is that where there is an allegation of crime against an employee, the employer cannot dismiss the employee based on that allegation until the conclusion of a criminal trial. Where however as in this case, the employee was dismissed for ‘gross misconduct’ as contained in the claimant’s letter titled ‘Summary Dismissal’ then the matter will be viewed differently. In this case the issues against the claimant are that of forging of ….. supply documents, inflation of prices and supply of invoices with non existent addresses, including using his personal computer to generate quotations e.t.c. Surely this conduct is against the business interest of his employer. Where an employee as in this case commits an act which is injurious to the business of the employer and is incompatible with the faithful discharge of his duties, it is justifiable for the employer to dismiss him. See Uzondu v. UBN [2009] 5 NWLR (pt. 1133) 14, Underwater Engineering Co. Ltd & Anor v. Danisha Dubefon [1995] 6 SCNJ 55, Anselim I. Osakwe v. Nigerian Paper Mill Ltd [1998] 7 SCNJ 222. I have looked at the processes and exhibits frontloaded by the parties in this case, I have also listened to the witnesses of the defendant and the testimony of the claimant as well as the written submission of the parties. I am of the considered view that there is sufficient evidence to show that the claimant was not honest in his dealings as far as his conduct was concerned. It is trite law that where an employee complains that his employment has been wrongfully brought to an end, the onus is on such an employee to place before the court the terms of the contract of his employment with his employer and to prove in what manner the terms have been breached. The terms and condition of an employment are the bedrock upon which any claim premised on such employment must squarely rest. In the instant case the claimant averred that his dismissal was unlawful, wrongful, null and void and of no effect without proving the terms and conditions that had been breached by the respondent see Azenabor v. Bayero University Kano [2009] 17 NWLR, pt. 1169 99, Akinfe v. UBA Plc [2007] 10 NWLR (pt. 1041) 185, Momoa v. CBN [2007] 14 NWLR (pt. 1055) 504, Ziideh v. R.S.C.S [2007] 3 NWLR (pt. 1022) 554. After evaluating the totality of evidence before me, my finding is that the defendant has been able to establish by credible evidence that the claimant’s behaviour is capable of eroding the confidence of his employer as to continue to work with him. I therefore believe the evidence of the defendant as against that of the claimant. The terms of employment of the claimant in this case is the letter of appointment of the claimant which is in evidence here and the said letter of appointment did not provide any special procedure for bringing the relationship between the parties to an end. However the said letter of appointment under the heading “misconduct†it provided as follows: “Should you at anytime be guilty of grave misconduct, refuse to comply with orders/instructions, disclose confidential information, be convicted of a criminal offence, conduct yourself in such a manner as to bring the company into disrepute, or be incapable of performing your duties to the satisfaction of the company, the company will be entitled to exercise its power of summary dismissalâ€. The defendant’s letter of dismissal dated 17th August 2011 states as follows: Dear Yomi, SUMMARY DISMISSAL We refer to you letter of employment dated 1st April, 2009. Following an investigation into various procurements made by you as the Manager IT Department, we have uncovered evidence that indicates that you have committed a series of frauds in the company. You are hereby summarily dismissed with effect from today 17th August 2011, from the employment of Lekki Concession Company Limited (LCC) for gross misconduct in forgery of procurement documents and siphoning of the company’s funds. Kindly submit your LCC Identification Card and any other LCC items in your possession. Yours faithfully, For: Lekki Concession Company Limited SGD Feyi Durojaiye Head, Human Resources & Admin. It is trite law that an employer’s right of summary dismissal must arise from the terms express or implied in the contract of employment. See Jirgbagh v. UBN Plc [2001] 2 NWLR pt. 696 p. 13. Also, in a master and servant relationship such as in the instant case there is a general power reposed in the employer to dismiss an employee for misconduct of any kind. What constitutes misconduct is not clearly spelt out, but “gross misconduct†has been defined as conduct of a grave and weighty character as to undermine the confidence that should exist between employee and employer and misconduct is what the employer makes it out to be. It could be a series of disobedient actions, acts of insubordination, absenteeism, embezzlement or some other conduct that would be considered detrimental to the corporate existence of an institution. See Azenebor v. Bayero University Kano [2009] 17 NWLR (pt. 1169) at 102, Borishade v. NBN Ltd [2007] 1 NWLR (pt. 1015) 217. Equally in Eze v. Spring Bank Plc (Supra) the Supreme Court held that working against the deep interest of the employer as the claimant has done in the instant case amounts to gross misconduct entitling an employer to summarily dismiss the employee. To warrant summary dismissal, it suffices that the conduct of the employee as in the instant case is of such grave and weighty character as to undermine the relationship of confidence which should exist between the employer and employee. See Ajayi v. Texaco Nig Ltd [1987] 3 NWLR (pt. 62) 577, Sule v. Nigerian Cotton Board [1985] 2 NWLR (pt. 5) 17. In my considered view the defendant has been able to establish that the claimant committed acts of gross misconduct which goes to the root of his contract. The defendant was therefore right to have summarily dismissed the claimant. In the circumstance I therefore find and hold that the claimant is not entitled to the reliefs sought in this case. As to whether the defendant is entitled to the reliefs sought in the counter-claim, I agree with the argument of the claimant’s counsel that the defendant did not lead evidence to specifically prove the counter claim. In Okolo v. UBN [1998] 2 NWLR pt. 539 at page 625 the Court of Appeal held that a counter claim enjoys an independent existence from the main suit from which it was raised and so the failure of the plaintiff’s suit does not affect the defendant’s counter claim and vice-versa. But it is important therefore that the counter claim must be properly pleaded and proved because the pleadings of a counter claim is governed by the same rules as those of the statements of facts and so must be proved before the counter claimant will get judgment in his favour where the counter claim is not proved it must fail. In the instant case the counter claim of the defendant was not proved and so it must fail and I so hold. The defendant is not entitled to the reliefs sought in the counter claim. On the whole, I hold that the dismissal of the claimant is not wrongful. The claimant’s action therefore fails and is hereby dismissed. The counterclaim of the respondent also fails and is equally dismissed. I make no order as to cost. Judgment is entered accordingly. …………………………………… Hon. Justice J. T. Agbadu Fishim Judge